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Hi. Thanks for requesting me.
The warnings should be given by the facility keeping the person. This is typically done by a nurse, although it could be anyone at the facility.
Many hospitals employ social workers who deal with this, as well.
If this was a large county facility, like you would likely find in Collin County, they would have forms the patient would sign, if they were capable of signing. At the very least, the form should have writing on it indicating the warnings and rights were read, and the person was unable or unwilling to sign.
This section has a confusing 24 hr time frame to notify the person that the information that the detained person provides will be used against them. Why would a persons rights be told 24 hrs after they arrive? These seem significant and waiting to informa a person of the right to an attorney seems odd to delay up to 24 hrs.
They give the facility 24 hours because in many situations, people come in a state of mind that would render the warnings and rights meaningless. For example, if a person comes in babbling or incoherent (which many in this situation do), giving them important information would be useless. 24 hours gives the facility time to try to stabilize the person.
These seem similar to miranda rights laws and like them are significant. If a person was incoherent would a family member be notified of these right on their behalf, so as to protect the rights of the person potentially?
The police or facility are not legally required to inform a family member. Whether they should contact family members is another question (in my opinion, they should at least make that effort), but I can tell you that they are not legally required to.
So I am guessing that the assumption is that the officer has correctly interpreted the statute and is imploying the emergency detention appropriately and has certified to his reasoning . So the filing of the APOWW to the court or DA is check and balance against this officers statements and dimonstrating his burden of proof?
Correct. First, you the law presumes that his affidavit is his honest version of the facts. So, the judge has an opportunity to review that and, if he so chooses, reject it (although that rarely happens). The person's real check on the process is their right to a hearing, where the officer and medical personnel can be called as witnesses and cross examined by the person's attorney.
But when would that happen in this process? It seems like the statute allows for a person to be detained, held for 48 hours and then released without the hearing?
They could be released before the hearing. In that case, there was no need for such a hearing. If you feel that the officer was intentionally falsely detaining someone, the remedy would be to bring a civil rights lawsuit.
Could a person be held for longer without a hearing?
Unless it falls on a weekend or holiday, no the person should not be held longer without a hearing.
Could that hearing take place in the absence of the person detained or a lawyer representing the peson detained?
No, it should not.
I appreciate the information you have provided especial at this time of night.
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Thanks you too
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